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Casual Workers L4 - Coggle Diagram
Casual Workers L4
a. Temporary Agency workers
Triangular work relationship
Normal obligations of the employer are distributed between two parties:
the employee is assigned to a third party who directs the work
(‘end-user,’ ‘hirer’)
;
the
agency
arranges assignments and ensures payment.
Employment Status
difficult to establish that either is in an employment relationship with the individual labourer.
Are they an end user?
difficulty is no direct contractual relationship between the worker and end-user.
DACAS v Brook Street Bureau UK Ltd [2004] IRLR 358 CA
:
Judicial Solution?
determined that a contract could be
implied
between the two that would establish the foundation necessary for employment status.
bsence does not preclude the implication of a contract between them.-
Mummery LJ, para 17
Applied by the Court in
Cable & Wireless v Muscat [2006] IRLR 354.
James v London Borough of Greenwich
:
Judicia Retreat
Bingham LJ in The Aramis [1989] 1 Lloyd’s Rep 213 at 224.
is it the role of the judiciary or of Parliament to respond to the conditions of temporary agency work?
Policy decisions have to be taken by others about what changes (if any) to make, what rights to confer on whom, what qualifying periods to set and so on.’
If this is made less attractive or more costly, job losses may follow and more work may be added to the burden borne by long term employees
arguments for a flexible labour market in the interests of a competitive economy and of full employment.
Are TAWs employees of the agency?
Montgomery v Johnson Underwood Ltd [2001] IRLR 269 CA
“little or no control, direction or supervision,”
• Until a regulatory solution is forthcoming, the tripartite relationship remains much as it ever was:
agency has mutuality but no control, and the end user has control but no mutuality.
Possibility of identifying the agency as the employer is complicated by the criterion of control
Stringfellow Restaurants Ltd v Quashie [2012] EWCA Civ 1735
Extent and Conditions of TAW
Empirical research suggests that
b. it involves disadvantages for a substantial number of workers (wages, working hours, security etc
a. It has rapidly increased in recent decades
Agency Working in Britain: Character, Consequences, and Regulation’ (2005) 43 British Journal of Industrial Relations 249-71
The Agency Worker Regulations
AIM: to ensure that agency workers receive the same pay and basic conditions as comparable employees of the hirer
working time,
rest periods
holidays
Reform
: April 2020, all agency workers are entitled to a key information document that clearly sets out the type of contract they will have and the pay they'll receive.
Standalone legislation
National Minimum Wage Act s.34- coverage for TAW
ZERO hours work
an agreement between two parties that one may be offered work but no work is guaranteed
Difficult to establish requirements for employment rights
These requirements can include
Employee Status
this has been made much more difficult by the evolving requirement of mutuality of obligations
ii. Mutuality of future commitments, where you have two promises exchanged: a) employer will provide future work; and b) employee will accept future work
O’Kelly v Trusthouse
MOO is understood as requiring future promises to give and accept work, then ZHC contracts are inherently incapable of satisfying the definition of a ‘contract of employment’
Carmichael v National Power [2000] IRLR 43
offered them "employment" as station guides "on a casual as required basis".
did no more than provide a framework for a series of successive ad hoc contracts of service for services which the parties might subsequently make" = No Contract of Service
i. The basic wage/work bargain exchange: Individual does work, employer pays them for that work
Minimum period of continuos employment
Statutory Legislation
May 2015, section 27A of the Employment Rights Act 1996
makes ‘exclusivity clauses’ in zero-hours contracts unenforceable
The platform economy
platform arrangement is also a tripartite relationship eg
Uber
Uber drivers consider as
Limb b workers
Revisitng the Limb B worker test after
Uber
A contract: Court could infer this from reality of the relationship
Personal service: No question that Uber drivers were required to provide personal service, but this factor still stands.
Different Findings : in Deliverooo workers because of unfettered substitution clause and personal service enough to defeat worker status
Customer/client exception: now appears to be a fact-specific, multi-factor test that looks very much like ‘employee lite’ but with more emphasis on control/subordination and less on
mutuality of future obligations
Pimlico Plumbers:
suggest that lack of mutuality of obligations is not fatal to limb b worker status
Uber: the idea that ‘worker’ status may exist for the duration of a single engagement even if the lack of future mutuality precludes the finding of an umbrella/global contract between those engagements.
Addison Lee Ltd v Lange & Ors [2021] EWCA Civ 594: Platform limb b workers
Continuity
Two methods to qualify for continuity despite not being a regular employee
allowances for temporary cessations in section 210 ERA and section 212 of the ERA,
allows employees to link their separate individual contracts of employment together into a continuous period of employment via a statutory bridge.
However
requires the worker to establish that they were an employee during each individual engagement
in Cornwall County Council v Prater,
The Court of Appeal held that although there was no continuous umbrella contract, there was sufficient mutuality of obligation to treat each individual hiring as a contract of employment and s.212 could be used to link them together into a longstanding contract.
1.Under the common law to be in a binding continuous arrangement with the employer called an ‘umbrella contract.’
St Ives Plymouth v Haggerty, UKEAT/0107/08